Melvin Alexander Moore was indicted in October 1993 in the
Circuit Court of Appomattox County for rape of a child under the
age of 13 years, Code ? 18.2-61(A)(iii),
allegedly committed in September 1984. Following a unitary trial,
a jury found the defendant guilty as charged and recommended a
15-year sentence.

After a hearing and consideration of a pre-sentence report,
the trial court confirmed the 15-year sentence. However, the
court suspended 14 years of the sentence, ordered defendant to
serve 12 months in jail, and placed him on five years’ probation
upon release from jail. Defendant was allowed to remain free on
bond pending appeal.

Subsequently, the Court of Appeals granted in part and denied
in part defendant’s petition for appeal. In the order awarding
the appeal, the Court of Appeals rejected defendant’s contention
that the evidence was insufficient as a matter of law to prove
the essential element of penetration.

The appeal was awarded on the issue whether the trial court
erred in allowing an expert witness, a mental health therapist,
to testify for the Commonwealth about certain behavioral patterns
of the victim that were consistent with a child who had been
sexually abused. The defendant argued this testimony was improper
because it was an impermissible comment on the victim’s
credibility.

In a February 1996 unpublished opinion, a panel of the Court
of Appeals, in a 2-1 decision, ruled in favor of the Commonwealth
on the issue presented. In July 1996, following an enbanc
hearing, the Court of Appeals, by a 6-3 decision, affirmed the
judgment of the trial court for the reasons stated in the panel
opinion.

We awarded the defendant an appeal. The dispositive issue in
this appeal is whether the Court of Appeals erred in holding
there was sufficient evidence of penetration.

Fundamental principles applicable here should be reviewed. To
justify conviction of a crime, it is insufficient to create a
suspicion or probability of guilt. Rather, the burden is upon the
Commonwealth to prove every essential element of the offense
beyond a reasonable doubt. Cameron v. Commonwealth,
211 Va. 108, 110, 175 S.E.2d 275, 276 (1970). AccordCamp
v. Commonwealth, 14 Va. App. 879, 884, 419 S.E.2d 435, 438
(1992). "The evidence must exclude every reasonable
hypothesis of innocence and be consistent only with the guilt of
the accused." Powers v. Commonwealth, 211 Va.
386, 388, 177 S.E.2d 628, 629 (1970).

We shall consider the facts in the light most favorable to the
Commonwealth, which prevailed in the trial court.

The victim testified that on the day in question the
defendant, who was 45 years of age at the time and a friend of
the victim’s mother, was visiting in the home where she resided
with her mother. While the mother temporarily was away from the
home, defendant asked the victim to play "house."
Thinking defendant meant he wished to play with her toys, she
consented, and defendant led her to a bedroom.

The victim described, using anatomical dolls, how defendant
disrobed, how he undressed her, and how he positioned her on top
of him. Then, the prosecutor elicited the following crucial
testimony during direct examination:

"Q. Okay.

A. And he told me to get on top of him and I was like this
(demonstrating) on top of him. And his penis —

Q. Can you show us the position of your legs?

A. Yes. They were like this (demonstrating). I was sitting on
top of him. I was just sitting there.

Q. And your legs were spread over —

A. Like this (demonstrating).

Q. —his abdomen?

A. Yes. And he —

Q. Where was his penis? Can you show us that?

A. It was like this (demonstrating).

Q. Was it actually rubbing on your vagina?

A. Yes.

Q. Okay.

A. And he told me, he said, `This isn’t right.’ So he rolled
me over with his hands. Then I was laying like this
(demonstrating) on the bed. He spread my legs open into a V.

Q. And what did he do that with?

A. And then he got —

Q. Wait a minute. What did he spread your legs open with?

A. With his hands.

Q. Okay.

A. Then he got on top of me. He held his penis with one of
his hands and he rubbed it on the inside of my vagina like
this (demonstrating). And —

Q. Did he hurt you? Did you feel any pain?

A. Yes.

Q. You felt some pain?

A. No, I didn’t. I didn’t feel any pain at all.

Q. Okay.

A. I did not.

Q. Okay. Let’s back up a minute. He was on top of you. Let’s
go back over that again. He was on top of you and he had his
penis in his hand; one of his hands?

A. Yes.

Q. And he was rubbing it on your vagina?
A. Yes.

Q. All right, go from there.

A. Then he let go of his penis and he started to rub it like
this on top of me.

. . . .

Q. Let’s go back to when he was on top of you, okay. One time
he was holding his penis rubbing it between your legs and
another time you said he wasn’t holding it; he was just
rubbing it going back and forth.

A. Yes.

Q. Your testimony was you felt his penis on your vagina?

A. Yes."

The victim’s mother, age 24 at the time in question, testified
her daughter told her the day following the alleged incident that
defendant had "fooled with her." The mother testified,
"I didn’t believe her so I just sort of brushed it
off." A neighbor of the victim testified the victim said to
her the day after the alleged incident, "`My mamma’s
boyfriend made love to me.’"

The victim experienced emotional problems over the years. In
September 1993, according to the victim and her mother, the
victim saw defendant at a local laundromat and she became
"so upset" that the mother decided to take the child to
a Lynchburg hospital. The child was then referred to the
Appomattox Counseling Center, where she was first seen on
September 20, 1993.

Shortly thereafter, the local sheriff’s department received a
complaint from "Social Services." When interviewed by a
deputy sheriff, defendant denied having "sexual
contact" with the victim. Testifying at trial, defendant
denied that he "had sexual intercourse" with the victim
as alleged.

In this appeal, the Attorney General, pointing out that
"the credibility of witnesses and the weight assigned their
testimony are matters exclusively for the jury," contends
the victim "testified in graphic detail" how the
defendant had raped her. The Attorney General observes the victim
"specifically testified that Moore placed his penis inside
her vagina." Thus, the argument continues, the Court of
Appeals was correct in affirming the judgment of conviction. We
do not agree.

As we have already noted, "it is universally held that
under an indictment charging statutory rape of a child, as well
as one charging the common-law offense of rape of an adult woman,
the prosecution must prove that there has been an actual
penetration to some extent of the male sexual organ into the
female sexual organ." McCall v. Commonwealth,
192 Va. 422, 426, 65 S.E.2d 540, 542 (1951). The fact that the
man’s penis is placed on, not in, the woman’s
sexual organ is insufficient to establish the element of
penetration. SeeAshby v. Commonwealth, 208
Va. 443, 444, 158 S.E.2d 657, 658 (1968), cert. denied,
393 U.S. 1111 (1969) (in prosecution for sodomy, testimony that
boy’s mouth was merely placed "on" defendant’s
"privates" held insufficient to prove penetration).

In the present case, the prosecution presented evidence, as
part of its case-in-chief, that the defendant placed his
penis both "in" and "on" the victim’s vagina.
The Commonwealth’s evidence was in a state of equipoise on an
essential element of the crime. In one breath, the victim said
that "he rubbed it on the inside of my vagina." In the
next breath, after the prosecutor asked her to "back up a
minute," she answered "Yes" to the question,
"And he was rubbing it on your vagina?" Again, when
asked by the prosecutor to "go back," she answered
affirmatively to the question, "Your testimony was you felt
his penis on your vagina?"

This is not a case where inconsistencies have been developed
during cross-examination of the victim or a case where there has
been other evidence contradicting the testimony of the victim.
Certainly, those types of credibility issues are for the jury to
decide. But, this is a case where the prosecution has presented,
from the mouth of the victim, two different accounts of the
essential facts relating to a crucial element of the crime. As we
have stated, the Commonwealth’s evidence must be consistent only
with the guilt of the accused. However, in this case, the
Commonwealth’s evidence is consistent with the innocence of the
accused regarding the crime with which he was charged.

The prosecutor here apparently was under the erroneous
impression that proof the defendant’s penis was "on"
the victim’s vagina was sufficient to prove rape. At one point
during a colloquy with the trial judge out of the presence of the
jury, the prosecutor stated, "She may not necessarily have
pain if he just rubbed his penis on her vagina." During
argument of defendant’s motion to strike the evidence, the
prosecutor said that "my recollection of the record was [the
victim] testified that he rubbed his penis on her vagina, and
that’s enough. That’s penetration, Judge."

And to make matters worse, the prosecutor forcefully urged his
erroneous theory upon the jury, after the trial court had
instructed the jury that "sexual intercourse means an actual
penetration, no matter how slight, of the defendant’s penis into
the sexual organ of" the victim. The prosecutor told the
jury that "at one time" defendant was "holding it
in his hand rubbing it up and down on her vagina. Then he lets go
with his hand and continues to rub it up and down on her
vagina. . . . If he touches her vagina with his
penis, I submit to you, that’s penetration enough. That’s all it
takes and that’s what the evidence is. That he rubbed his penis
on her vagina." Parenthetically, we note that during the
jury’s deliberations, the trial court, exercising its discretion,
refused a request from the jury foreman that the jury be provided
with a transcript of the victim’s testimony "about the
sexual intercourse . . . whether or not it was actual
penetration."

We have not overlooked the structure of a woman’s anatomy
involved here, and its possible impact on the victim’s testimony
that defendant’s penis was placed "on" her vagina. The
Court of Appeals, construing Rowland v. Commonwealth,
147 Va. 636, 136 S.E. 564 (1927), and quoting an attorney’s
dictionary of medicine, has said "that penetration of any
portion of the vulva, which encompasses the `external parts of
the female sex organs considered as a whole’ and includes,
beginning with the outermost parts, the labia majora, labia
minora, hymen, vaginal opening and vagina . . . is
sufficient" to establish the element of penetration. Love
v. Commonwealth, 18 Va. App. 84, 88, 441 S.E.2d 709, 712
(1994). But there is no indication whatever in the record that
the young victim here was aware of the intricate structure of her
sexual organ. Rather, it is clear from the evidence that when she
referred to her "vagina," she was describing the
external part of that portion of her anatomy.

This case is analogous to Elam, supra. There,
the victim testified that the defendant "didn’t rape
me" and that she did not know whether defendant "put
his penis" into her sexual organ. 229 Va. at 115, 326 S.E.2d
at 686. This Court said: "We agree with the defendant that
this testimony, while sufficient to prove attempted rape, is
insufficient, standing alone, to prove rape." Id. We
affirmed Elam’s conviction, however, finding the testimony did
not stand alone because medical and forensic evidence in that
case "was compelling." Id., 326 S.E.2d at 687.

In the present case, there was no medical or forensic evidence
of the alleged fact that the defendant committed the rape. Here,
the victim’s testimony does stand alone. Consequently, we hold
there was a failure of proof of penetration as a matter of law,
and the Court of Appeals erred in ruling to the contrary.

Because of the view we take of the case, we do not reach the
other assignments of error.

Accordingly, we will reverse the order of the Court of
Appeals, reverse and annul the trial court’s order of conviction,
and dismiss the indictment.

Reversed and dismissed.

FOOTNOTES:

[1]Justice Stephenson participated
in the hearing and decision of this case prior to the effective
date of his retirement on July 1, 1997.